The BASL proposals: A review
Posted on May 14th, 2022

MALINDA SENEVIRATN​E

Crises prompt proposals for management, recovery and future prosperity. Of the many we’ve seen, perhaps on account of public profile, the set of proposals submitted by the Bar Association of Sri Lanka (BASL) is one which calls for serious consideration. Indeed, the BASL proposals have been approved by multiple political groups/individuals including the President and the main party in the Opposition, the Samagi Jana Balavegaya (SJB). What is offered here is a review.
The BASL document is organised under three headings, background, objectives and proposals. Let us consider them in this order.

Background:
Yes, the economic crisis is grave. The crisis however has little to do with the political architecture . The political unrest was spurred by the economic debacle which of course was exacerbated by horrendous policy decisions and brought to tipping point by the unleashing of goons by ruling party politicians in an exercise where the then Prime Minister is clearly culpable.  

All this, however, has little to do with the alleged failures of the Executive Presidency as the BASL insists. The BASL believes that ‘meaningful parliamentary oversight’ would have done the trick. However, we’ve had presidential terms without such economic hardships even though there wasn’t any meaningful parliamentary oversight. On the other hand, there have been and there are countries without executive presidencies that have suffered and are suffering economic collapses. The ‘background’ as articulated by the BASL, appears more like a necessary preamble to shoot down the 20th Amendment which of course has its flaws.

The people are demanding a system change, the BASL claims.‘System change,’ though, was but a footnote in the agitational tract. The BASL speaks of constitutional amendments and institutional rearrangement. Good.  Political stability. Yes. Calling for responsibility is fine too. Obtaining it is another matter. However, the BASL has sketched the situation decently enough.

Objectives:
Let’s move to the five stated objectives: a) create political, economic and social stability in the country, b) create an environment to address the fundamental problems that have brought about the current crisis (and imperil future reforms), c) restructure external debt and enter into appropriate programmes with multilateral institutions including the IMF and for that purpose to appoint the financial and legal advisers and negotiate a debt standstill pending debt restructuring, d) obtain bridging finance [which] together with the savings arising from the debt standstill to be used to procure uninterrupted supply of essentials to the People until such time the debt restructuring, and the IMF program is in place, will eliminate the shortages in power, fuel, gas, medicines, food etc., and e) create an environment to combat corruption and to ensure accountability and strengthening independent institutions.

Of these, ‘a’, ‘b’ and ‘e’ are hard to object to. They are easily written as well. Everyone wants stability, everyone wants root causes addressed and everyone wants corruption ended, accountability ensured and independent institutions strengthened. The other two, ‘c’ and ‘d’ are the giveaways. 

I can understand ‘economic recovery’ or ‘economic stability’ as an objective (which of course is already in ‘a’), but it is puzzling that the BASL thinks seeking IMF support is an objective.  A suggested means to an end would have been defensible. More on the IMF (as per the specifics in the BASL proposals proper) later.

Proposals:  
The proposals are framed by a clearly stated ‘overarching requirement,’ viz a stable Government with the ability to implement reforms domestically and the ability / credibility to negotiate with the IMF, other multilateral agencies, and friendly countries to help Sri Lanka get out of the economic crisis.’

The first part is almost intuitive. We do need political stability and a government capable of implementing domestic reforms. The second part is about seeking outside support, again understandable. Why the IMF though? And why is it an ‘overarching requirement’? Cannot the BASL see beyond the IMF? Is the BASL aware of what that particular path to salvation has resulted in? Surely the post-1977 history of Sri Lanka has taught all of us that the IMF is a) part of the system that got us into this mess, and b) is a problem and cannot be part of the solution? Is neoliberalism, discredited and proven untenable on multiple counts, some kind of overarching touch-me-not for the BASL? It would be interesting to know a) if the BASL sought and obtained advice from economists, and b) if so, who these economics are (as it is said, ‘before studying economics, study the economists).

Let’s move to the proposals proper. The first is a useful and important caveat. The BASL demands adherence to constitutional provisions. More critically, the BASL insists that ‘transitional provisions’ recommended not be used as precedent. If any of these proposals are worked into policy at this time, such caveats should be included and emphasised.  

Proposals 2-6 relate to constitutional reform. Proposals 7 and 8 are about an interim operational architecture (logically, these should have preceded constitutional matters, given the initial and cautionary note). Number 9 refers to the Presidential Commission of Inquiry appointed to Investigate Allegations of Political Victimisation during the Yahapalanaya years. This seems to be a cherry-picked issue (a first year law student could come up with several dozens of issues similar to this). Proposals 10-12 are nuts and bolts stuff pertaining to a Common Minimum Program (CMP) put together by the the proposed ‘Cabinet of National Unity (CNU)’, in consultation with the proposed ‘Advisory Council’ which would be appointed as per Proposal No 8. The last, i.e. No 13, sets timelines: the duration of the ‘Government of National Unity’ and when parliamentary elections are to be held. Let’s consider these sets of proposals.

Constitutional Reform (Proposals 2-6) via a 21st amendment:
With respect to immediate amendments, it’s essentially a matter of repealing the 20th Amendment and restoring the 19th while retaining the current number of judges in the higher courts. Provisions regarding the Constitutional Council (CC) and Independent Commissions (ICs) are to be complemented by, the BASL proposes, enhanced financial independence, transparency and accountability.

The following needs to be stated, if only parenthetically:

[The passage of the 19th Amendment made a mockery of judicial review and set a very bad precedent which, interestingly, was not leveraged in the passage of the 20th Amendment. An article published in the Daily Mirror on the 21st of February, 2019 titled ‘Constitutional Council and the poverty of independence, intellect and integrity’ elaborates on this. Then there’s also the issue of dual-citizenship. The 19th effectively blocked dual-citizens and the 20th removed it. The former was politically motivated and the latter too. The fact remains that this country has been wrecked by citizens as well as dual citizens. Most importantly, those in whose hands the BASL, among others, wants to put the country and its future, the IMF, is not run by citizens or even dual-citizens but foreigners].

The BASL has ignored completely the fact that the composition of the CC completely reneges on the spirit of the 19th Amendment, i.e. clipping the wings of the President and inserting independent oversight. Seven  out of the ten members were to be parliamentarians. The other three, nominated jointly by the Leader of the Opposition and Prime Minister were to be ‘persons of eminence and integrity who have distinguished themselves in public or professional life and are not members of any political party.’ The majority of ‘independents’ who sat on the CCs from the time the 19th was operationalised were ideologically/politically aligned with the then ruling coalition. In effect then, the CC of the 19th Amendment was no better than the Parliamentary Council of the 18th Amendment (which of course was an even worse piece of legislation for other reasons).

The CC, then, would inevitably be a slanted body. The impartiality of the ICs that the CC sets up, would be, again, inevitably compromised. We know in hindsight that the conduct of the various CCs in appointing ICs was marked by political bias and incompetence.  Independence (or otherwise) is dependent on the process of selection and if the composition of the CC and the constitutionally sanctioned process are flawed, it is hard to obtain. The BASL ought to have paid more attention to the relevant clauses of the 19th Amendment.  

Next the BASL suggests additions. Necessitating approval of the CC for appointments of the Governor of the Central Bank and the Monetary Board, certainly broadens the process. This is not necessarily a bad thing except, as mentioned, the CC as per the 19th is necessarily a politically compromised body. If the composition issue is fixed, then it’s fine, one could argue. Then again, why only the Governor and the Monetary Board? How about the Attorney-General, the Auditor-General and heads of similar institutions? The BASL need not have been selectively specific. The proposal could have been worded in general terms to cover all such posts. On the other hand, why leave it to the whims and fancies of a group of people oddly chosen? Couldn’t the BASL have proposed the setting up of robust mechanisms to affirm meritocracy?  

The last sub-proposal, that of the CC-recommended body recommending presidential pardons, seems to have been hurriedly inserted. There is already an established procedure for presidential pardons. A revisit wouldn’t have harm. Shifting the power to give the final green light from the president to some other body would make the term ‘presidential pardon’ ridiculous. One wonders if the BASL took into consideration all the powers of the Executive Presidency or responded to what the BASL knows about or what has had media traction over the past few years.  

Next (No 4) comes appointments of ministerial secretaries and the ICs. These are routine exercises. No 5 forbids the President from holding [cabinet] portfolios. Since the 21st seeks to turn the President (who, by the way, secured way more votes than any politician in Parliament and, unlike anyone in the ICs and the three independent members of the CC, is accountable to the people of the country) into a rubber-stamper of the new executive arrangement (Prime Minister and Cabinet), this makes sense. It, however, violates the entire spirit of the current Constitution. Ideally a new constitution or abolition of the executive presidency (which the BASL recommends and which we will discuss presently) should precede these kinds of changes which, essentially, amount to constitutional tinkering.  It is also disconcerting that the BASL has not taken issue with the fact that ‘National Government’ as per the 19th Amendment remains undefined. The problems of this vagueness came to the fore during the Yahapalana dispensation, especially at the time of the parliamentary crisis in 2018.
No 6 sets a timeline for abolishing the Executive Presidency. It may require a referendum though since the incumbent was elected by the people. The Supreme Court would have a say, no doubt. Attributing all ills to the Executive Presidency is downright silly. Curtailing of presidential powers is defensible, but calling for the abolishing the office without addressing important safeguards embedded in the Executive Presidency on other matters amounts to gross negligence. The BASL appears to be unaware of the implications in relation to the (illegally ‘enacted’) 13th Amendment. If the BASL had proposed relevant caveats/amendments or even a repeal of the 13th, the demand could be half-way legitimate. They have not. Indeed, if the BASL proposal is implemented as is, it opens the path not to federalism but to separation. The BASL has not addressed this serious issue.

Now, is an executive presidency by definition made for error and curtailing of freedoms? Are systems that do not have executive presidencies necessarily better and do they ensure countries don’t go bankrupt and are insured against political crises? It’s all about checks and balances, but these need to be discussed and carefully crafted. The BASL has not proposed any new checks and balances. They have gone with what they, erroneously, believe to be a fantastic piece of legislation, the 19th Amendment. They are so wrong.

The operational architecture (Proposals 7-9):
‘The immediate’ is laid out in Proposal No 7. The BASL proposes a cabinet of 15 ministers in an Interim Government of National Unity. The swearing in of Ranil Wickremesinghe has of course scuttled the idea of unity. The BASL proposes that in the absence of ‘unity’ a vacancy be created to shoo-in an outsider. We are no longer talking about legitimacy and mandate given ‘exigencies of the situation,’ so this could also be considered. If Wickremesinghe’s government collapses that might be an option that will be brought back into the discussion. Overall, there’s nothing seriously wrong with No 7.

Number Eight is where the BASL does itself the greatest disservice. Here, the BASL proposes an independent Advisory Council (AC) consisting of 15 qualified professionals from disciplines corresponding to the 15 ministries.  The BASL insists, ‘All major policy decisions of the Government to be taken in consultation with the Advisory Council in a transparent manner.’

What is this Advisory Council? The BASL says the AC will be appointed following consultation between the Interim Government and ‘all relevant, independent, apolitical professional/trade/civil society organisations.’ Is the BASL going to guarantee relevance, independence, the apolitical nature of these organisations and the people who run them? And to whom, pray, are these organisations and their bosses answerable? Certainly not the people of this country.  

We have seen what ‘advisors’ can do. We have seen what additional centers of administrative authority can do to the institutional arrangement and the institutions therein. Pundits and punditry are ace put-offs. We do have an administrative service and therefore each ministry will have a secretary with specific functions. Where needed, there is provision for such individuals to obtain advice from relevant experts. At the end of the day, if the BASL proposals are implemented, ’experts’ will call the shots but they won’t land anywhere close to the intended target.

The ninth proposal seeks the Special Presidential Commission of Inquiry mandated to investigate allegations of political victimisation rescinded. Implied here is that the BASL believes there was no victimisation whatsoever during the Yahapalana years. However, if one assumes that the BASL, although this is not spelled out, objects to the possibility of witch-hunts, Number 9 makes sense. The BASL could have gone beyond this measure and insisted on provisions to ensure that such witch-hunts don’t get off the ground.

The Program (Proposes 10-13):
Number 10 is about preparing a ‘Common Minimum Program (CMP)’. The Cabinet is required to design this in collaboration with the AC. Even if we assumed (and we are being generous here) that the AC is ‘independent’ and have ‘expertise,’ the BASL essentially straight-jackets the AC and the Cabinet by way of an operational framework.

The CMP ‘conditions’ have some valid features such as enacting necessary amendments to the Monetary Law, strengthening the independence of the Central Bank, immediate resolution of the shortages of essential goods and services, upholding the Rule of Law, recovery of state assets, campaign finance, declaration of assets and liabilities, revisiting the Prevention of Terrorism Act, timeframes for elections etc. Essentially the BASL wants problems alleviated, fiscal discipline, professionalism and accountability. The BASL stops short of demanding better measures to audit one and all, not just politicians the President downwards, but, say, professionals such as lawyers, doctors, tuition teachers etc. Yes, those are ‘details,’ but then again in this document the BASL does fiddle with details on occasion.

The meat of the BASL brief with regard to the CMP is economic. Again, the IMF is seen as a saviour. Not surprisingly the BASL wants to sell off state assets. It’s perfectly fine to ensure that awarding of tenders is conducted in a transparent manner. Such procedural caveats are good. However, the BASL does not seem to understand or care about the fact that the IMF is a part of the system, that the Bretton Woods institutions keep systems/countries on the edge, ensure scandalous value appropriation by a few at the cost of disempowering the vast majority of the particular population.

Number 11 proposes that the CMP must include the abolition of the Executive Presidency. We’ve discussed the matter above. Number 12 insists that the Interim Government presents a budget based on the CMP. This goes without saying and in the saying we will have all the problems raised above adequately mirrored. It cannot be a pretty picture.

The last proposal is about the tenure of the Government of National Unity, 18 months. So, the incumbent president will be out in 15 months, and as things stand Ranil Wickremesinghe would have free rein for three months plus six weeks as head of a caretaker government overseeing General Elections. Enough time to obtain a decisive edge over political rivals.  An insurance policy written for a preferred political force, then? The BASL could have done better.

Conclusion:
Taken as a whole, the BASL proposals have merits and demerits. That they were accepted without reservation by political groups such as the Samagi Jana Balavegaya says a lot about the seriousness of that political party and anyone else which doffed hats to the BASL. All that said, it is worthy of study, but only if it is considered to be nothing more than a ‘discussion paper’ for a program that seeks to resolve the multiple crises Sri Lanka is ridden with. An uncritical embrace would be out of order.

malindadocs@gmail.com

[Malinda Seneviratne is the Director/CEO of the Hector Kobbekaduwa Agrarian Research and Training Institute. These are his personal views.]

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